RE NGUYEN THI PHUONG

CACV 20/2023, [2023] HKCA 1131

On Appeal From [2023] HKCFI 148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 20 OF 2023

(ON APPEAL FROM HCAL NO 2148 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge To (“the Deputy Judge”) set out in the Form CALL-1 dated 18 January 2023, by which the Deputy Judge refused her application for leave to apply for judicial review (“the Leave Decision”) ([2023] HKCFI 148).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 26 September 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 August 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  On 30 January 2023, the applicant indicated her consent in writing for this appeal to be disposed of on paper. Accordingly, we proceeded to consider this appeal on paper based on the available materials.

Background

4.  The applicant is a national of Vietnam. She entered Hong Kong illegally on 15 September 2014. On 15 January 2015, she was arrested for illegal employment. By the written submissions dated 12 May 2015 and 5 July 2015, she raised a non-refoulement claim on the basis that if she returned to Vietnam, she would be harmed or killed by her husband’s creditor over her husband’s unpaid debts. Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

5.  By their decisions respectively dated 22 August 2017 and 26 September 2018, the Director and the Board dismissed her non‑refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. In essence, having assessed the evidence, both the Director and the Board considered that the applicant failed to substantiate her non-refoulement claim on all applicable grounds.

6.  In particular, in dismissing her appeal against the Director’s Decision, the Board considered that the applicant was dishonest and unreliable. The Board also found that the applicant’s alleged dispute concerned a private debt and that there was no state involvement. Although the applicant spoke of injuries, they did not require major medical treatment. Accordingly, the Board refused to accept that the injuries as claimed by the applicant reached the requisite standard for her to be afforded non-refoulement protection. The Board further found that internal relocation would be available to the applicant. Accordingly, the Board concluded that the applicant failed to substantiate her claim and dismissed her appeal.

The Leave Decision

7.  On 8 October 2018, the applicant filed her Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision. No ground of review was given by the applicant in her Form 86. In her supporting affirmation, she merely asserted that if refouled to Vietnam, her life would be in danger as she was afraid that her husband’s creditor and his men would inflict serious harm on her or even kill her. As the applicant did not request for any oral hearing, her application was considered on paper.

8.  By the Leave Decision, the Deputy Judge dismissed her application for leave to apply for judicial review. The Deputy Judge noted that the applicant only disagreed with the Board’s Decision but she failed to advance any viable ground for judicial review. The Deputy Judge reviewed the Board’s Decision and observed that it was reached after the Board had carefully considered and assessed the evidence and the applicant’s credibility. Accordingly, in the absence of any error of law, Wednesbury unreasonableness or procedural unfairness, the Deputy Judge dismissed her application for leave to apply for judicial review.

The Appeal

9.  On 30 January 2023, the applicant filed a Notice of Appeal and a supporting affirmation to appeal against the Leave Decision. In her Notice of Appeal, she stated that the gangsters and creditors disregarded the law and that she would be tortured, beaten or even killed. She also claimed that it would be infeasible for her to internally relocate as she was not an active person and might be disadvantaged in the labour market. She further claimed that it would be very dangerous for her to escape to another place in Vietnam given the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus.

10.  In her supporting affirmation, she alleged that there was “a good ground of appeal that was not necessarily considered at stage of applying for leave for Judicial Review” and that the Director and the Board “did not see the grounds to reserve their decisions”. However, she failed to specify what those grounds as claimed were.

11.  Contrary to the directions of the Registrar of Civil Appeals dated 30 January 2023, the applicant failed to lodge any written submissions.

Discussion

12.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

13.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

14.  In our view, the applicant’s allegations have no substance. It is noted that the applicant’s complaints in the present appeal are mainly directed at the Board and the Director and do not point to any error of the Leave Decision. Her complaints are also all general and vague without specific particulars or evidence in support. They therefore do not constitute proper grounds of appeal. See: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. More importantly, she did not identify any specific error in the Leave Decision. This appeal must fail on this basis alone.

15.  Further, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

16.  For the reasons given above, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.